1947: The Great Rhubarb Controversy

Technical legal decisions do not need to be broadly applicable to be important to the litigants. Such was the case with a 1947 case Barnes, Richardson & Colburn partner Joseph Schwartz argued before the Customs Court. At issue in C.J. Tower & Sons v. United States was the tariff classification of fresh rhubarb from Canada. Under the then applicable tariff, rhubarb was either subject to a 35% duty as fruits in their natural state (para. 752) or a 50% duty as vegetables in their natural state (para. 774).

According to the decision, which is published at 19 Cust. Ct. 12 (1947), the rhubarb in question was pulled from the ground, with the tops cut off and roots left in the ground. It was typically eaten as pie, stewed as a dessert, and with cream for breakfast. Testimony before the court indicated that it was never eaten as a side dish with poultry. The latter fact seeming oddly specific. A Customs representative gave conflicting testimony stating that he was more likely to eat rhubarb with his meal than as dessert.

The Court looked to various dictionary definitions of “fruit” and “vegetable” to ascertain the difference. In one example, “vegetable” was defined as any part of an herbaceous plant used for culinary purposes including the stems. Rhubarb, however, was specifically described in an encyclopedia as a “leaf-stalk” used for sauces and pies.

One definition of fruit stated that it is “the fleshy and juicy product of some plant, usually tree or shrub (and nearly always containing the seed), which, when ripe, is edible without cooking, and adapted for use as a dessert rather than as a salad.” "Fleshy and juicy" does not describe rhubarb. One definition also noted that the term “fruit” is “occasionally applied to certain other vegetable structures of pronounced flavor eaten as a sauce or dessert, as the stalks of rhubarb.” The introduction of this definition may have been the Perry Mason moment of the trial.

Luckily for Mr. Schwartz and our client, the Supreme Court had spoken to a similar issue in the 1893 case Nix v. Heddon. Botanically, tomatoes are seed-bearing fruit. Despite that scientific fact, the Supreme Court held that tomatoes are, for tariff purposes, vegetables because they are more likely to be eaten with dinner than as dessert.

Applying similar logic, the Customs Court noted that rhubarb is generally used in pie or as a sauce. When served as a sauce, it is similar to cranberry or apple sauce rather than as a true vegetable sauce. Thus, the chief use of rhubarb is as a fruit and its was classified accordingly.

This was no doubt an important win for the importer. Alas, this classification did not last. Rhubarb is not called out in the Harmonized Tariff Schedule of the United States. However, the Explanatory Notes to the Harmonized System specify that Heading 0709, Other Vegetables Fresh or Chilled, includes “Rhubarb, edible cardoons, fennel, capers and sorrel.”